[Federal Register Volume 70, Number 153 (Wednesday, August 10, 2005)]
[Proposed Rules]
[Pages 46448-46452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15830]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-TX-0020; FRL-7950-7]


Approval and Promulgation of Air Quality Implementation Plans; 
Texas; Texas Low-Emission Diesel Fuel Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve revisions to the State 
Implementation Plan (SIP) for the state of Texas. This revision makes 
changes to the Texas Low-Emission Diesel (TXLED) Fuel program. On April 
6, 2005 EPA

[[Page 46449]]

approved the compliance date change that was part of this submittal. 
None of the revisions being proposed for approval change the ultimate 
requirements regarding the reductions to be achieved. As a result and 
in accordance with section 110(l) of the Act, 42 U.S.C. section 
7410(l), these revisions will not interfere with attainment, reasonable 
further progress or any other applicable requirement of the Clean Air 
Act.

DATES: Comments must be received on or before September 9, 2005.

ADDRESSES: Submit your comments, identified by Regional Material in 
EDocket (RME) ID No. R06-OAR-2005-TX-0020, by one of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Agency Web site: http://docket.epa.gov/rmepub/ Regional 
Material in EDocket (RME), EPA's electronic public docket and comment 
system, is EPA's preferred method for receiving comments. Once in the 
system, select ``quick search,'' then key in the appropriate RME Docket 
identification number. Follow the on-line instructions for submitting 
comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm. Please click on ``6PD'' (Multimedia) and select 
``Air'' before submitting comments.
     E-mail: Mr Thomas Diggs at [email protected]. Please 
also cc the person listed in the FOR FURTHER INFORMATION CONTACT 
section below.
     Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-
L), at fax number 214-665-7263.
     Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air 
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross 
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are 
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except 
for legal holidays. Special arrangements should be made for deliveries 
of boxed information.
    Instructions: Direct your comments to Regional Material in EDocket 
(RME) ID No. R06-OAR-2005-TX-0020. EPA's policy is that all comments 
received will be included in the public file without change, and may be 
made available online at http://docket.epa.gov/rmepub/, including any 
personal information provided, unless the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information the disclosure of which is restricted by statute. Do not 
submit information through Regional Material in EDocket (RME), 
regulations.gov, or e-mail if you believe that it is CBI or otherwise 
protected from disclosure. The EPA RME Web site and the Federal 
regulations.gov are ``anonymous access'' systems, which means EPA will 
not know your identity or contact information unless you provide it in 
the body of your comment. If you send an e-mail comment directly to EPA 
without going through RME or regulations.gov, your e-mail address will 
be automatically captured and included as part of the comment that is 
placed in the public file and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
Regional Material in EDocket (RME) index at http://docket.epa.gov/rmepub/. Although listed in the index, some information is not publicly 
available, i.e., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically in RME or in the official file which is 
available at the Air Planning Section (6PD-L), Environmental Protection 
Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file 
will be made available by appointment for public inspection in the 
Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. 
weekdays except for legal holidays. Contact the person listed in the 
FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 
(214) 665-7253 to make an appointment. If possible, please make the 
appointment at least two working days in advance of your visit. There 
will be a 15 cent per page fee for making photocopies of documents. On 
the day of the visit, please check in at the EPA Region 6 reception 
area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the 
State Air Agency listed below during official business hours by 
appointment: Texas Commission on Environmental Quailty, Office of Air 
Quality, 12124 Park 35 Circle, Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra Rennie, Air Planning 
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone (214) 665-7367; 
fax number 214-665-7263; e-mail address [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA. This document concerns 
control of Air Pollution of NOX and VOCs from mobile sources 
in 110 counties of east Texas where the rule applies.

What Action Are We Taking Today?

    We approved the original TXLED rule on November 14, 2001, (66 FR 
57196) as part of the Houston-Galveston Attainment Demonstration SIP. 
On December 15, 2004, the Texas Commission on Environmental Quality 
(TCEQ) Commissioners proposed to revise the TXLED rule. The revisions 
were adopted on March 9, 2005, and submitted to EPA on March 23, 2005.
    On February 16, 2005, the Executive Director of the TCEQ submitted 
a letter to EPA requesting parallel processing of the compliance date 
portion of the SIP revision for TXLED. EPA proposed action prior to 
completion of the State rulemaking process and, after completion of the 
State process, approved the compliance date portion of the SIP revision 
for TXLED on April 6, 2005 (70 FR 17321).
    The Executive Director of the TCEQ submitted a letter to EPA on 
July 5, 2005, requesting that we not act on certain portions of the 
rule revision as it was submitted on March 23, 2005. These exceptions 
are noted below in the discussion of the rule. We are proposing to 
approve those aspects of the rule on which the TCEQ has not requested 
that EPA postpone action.

What Did the State Submit?

    The State submitted revisions to TXLED rules found in 30 TAC 114.6 
and 114.312, 114.314-114.316, 114.318, and 114.319. These include 
revisions to definitions; low emission diesel standards; registration 
of producers and importers; approved test methods; monitoring, 
recordkeeping, and

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reporting requirements; alternative emission reduction plans; and 
affected counties and compliance dates.

Why Are These Revisions Approvable?

    We thoroughly analyzed the rule revisions to ensure that they did 
not compromise the integrity of the approved SIP. Many changes were 
nonsubstantive editorial or format changes. Some substantive changes 
are considered minor. Major substantive changes that needed a more 
thorough analysis are discussed below. A detailed analysis can be found 
in the Technical Support Document that accompanies this action.

Section 114.312. Low Emission Diesel Standards

    In 114.312(b) the sulfur standard is removed. The sulfur standard 
is no longer needed in this rule because the federal ultra-low sulfur 
diesel standards are now promulgated and will reduce sulfur in on-
highway diesel in 2006 and in nonroad equipment starting in 2007. 
Removal of sulfur by itself does not influence NOX emissions 
when the fuel is combusted unless advanced technology equipment is 
used. This equipment is not required to be manufactured until federal 
compliance dates beginning in 2006 and 2007. While the delay in 
achieving sulfur reductions does not impact NOX emissions 
and therefore does not impact ozone plans in Texas, it does impact 
SO2 and PM emissions. However, there are no PM or 
SO2 nonattainment areas in the area covered by the rule so 
the delay in the sulfur requirement will not interfere with attainment 
of these standards. Because the affected areas are in attainment of 
these standards before the compliance date of these standards, these 
revisions will not interfere with any applicable requirements 
concerning nonattainment nor will they have an adverse impact on 
reasonable further progress. Therefore, the repeal of the sulfur 
standard will not interfere with attainment, reasonable further 
progress or any other applicable requirement of the Act.
    Renumbered 114.312(f) removes EPA from approval of alternative 
formulations. This revision is not approvable unless the executive 
director discretion is removed from the replicable test procedures in 
114.315. The State requested that EPA not act upon the executive 
director discretion portions of 114.315 because the State plans to 
remove these references in future rulemakings.

Section 114.314. Registration of Diesel Producers and Importers

    The previously approved SIP required registration with the State by 
all suppliers of diesel fuel in the affected area as of December 1, 
2004, to gather data on suppliers and potential suppliers. In the 
revisions approved on April 6, 2005, the deadline to register was 
changed to May 1, 2005.

Section 114.315. Approved Test Methods

    We are taking no action on subsection Sec.  114.315(b) nor 
Alternative V at Sec.  114.315(c)(4)(C)(ii)(V) at the request of the 
State. These citations give the executive director discretion for 
changing test methods. The State requested in the letter dated July 5, 
2005, that we not act on these portions of the submittal.
    Subsection (c) contains the methods and procedures for getting an 
alternative fuel formulation tested and approved. The adopted 
amendments to Sec.  114.315(c) clarify and update existing references 
and provide additional flexibility in the testing of alternative 
formulations. Adopted revisions to Sec.  114.315(c)(1)(C) and also to 
Sec.  114.315(c)(4) replace or add language to reference the active 
version of the appropriate test methods or procedures rather than the 
date-specific versions. These revisions will ensure the use of the most 
accurate and up-to-date testing methods or procedures by ASTM or EPA.
    The adopted revision to Sec.  114.315(c)(1)(C) clarifies the diesel 
grades and sulfur content of the reference fuel for the testing of 
alternative formulations. Because the sulfur requirements were removed 
from Sec.  114.312, revisions to Sec.  114.315(c)(3)(A) set the sulfur 
limit of the reference fuel at a maximum value of 15 parts per million 
(ppm). This limit matches the federal sulfur requirements starting in 
2006.
    The revision to Sec.  114.315(c)(4)(C) provides additional 
flexibility in the testing of new diesel formulations under Sec.  
114.312(f). These revisions amend the test sequences to now include 
sequences for testing with cold and hot start exhaust emission testing 
cycles. The revisions also contain sequences for testing only with hot 
start exhaust emission test cycles, including a new sequence for 
testing formulations that require an extended duration conditioning 
cycle. Alternative I at Sec.  114.315(c)(4)(C)(ii)(I) is retained from 
the approved rule. Clarification that 20 or 21 hot-start tests must be 
run with each fuel is now included for the first three alternatives. 
These revisions allow increased flexibility in test procedures while 
assuring adequate data is available for a determination of emission 
reductions from the proposed alternatives and, therefore, are 
approvable.
    Alternative IV at Sec.  114.315(c)(4)(C)(ii)(IV) does not clearly 
specify that at least 20 tests must be run as in the first three 
alternatives. If only a few tests were run on each fuel, it would not 
be similar enough to the first three alternatives for us to say it is 
effectively the same as the others. At least 20 tests must be run on 
each fuel for Alternative IV. In addition, the conditioning cycle must 
include four tests on the candidate fuel but not count them toward the 
data used to evaluate the emission impacts of the candidate fuel. This 
sets a new baseline from which to make the determination. The State is 
currently providing guidance on the testing requirements, clarifying 
that 20 tests must be run for Alternative IV and 4 additional tests are 
necessary as a conditioning cycle.
    The major revision to Sec.  114.315(c)(5) is a new formula that 
specifies the measurement tolerances per pollutant type that will be 
acceptable when calculating whether the emissions generated by a 
candidate fuel are comparable to the emissions generated by the 
reference fuel. This formula is essentially the same as the one in the 
California diesel fuel rules.
    The revision to Sec.  114.315(c)(6) adds consultation with the EPA 
into the process to approve an alternative fuel formulation. This 
provides EPA input into the process to ensure the adequacy of the 
alternative fuel formulations and is approvable.
    By letter dated July 5, 2005, the State has asked that EPA not 
consider Alternative V at Sec.  114.315(c)(4)(C)(ii)(V). This provision 
gives the executive director discretion to approve other test sequences 
considered to be equivalent. We are taking no action on this provision 
in this action.
    The revision adopted in Sec.  114.315(d) adds requirements for what 
must be included in the application for approval of alternative diesel 
fuel formulations using additives. Adopted new paragraph (1) outlines 
that the application provided to the executive director must include 
the identity, chemical composition, and concentration of each additive 
used in the formulation, and the test method by which the presence and 
concentration of the additive may be determined. Adopted new paragraph 
(2) outlines what will be included in the executive director's approval 
notification of an alternative diesel fuel

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formulation. The adopted paragraph requires an approval notification to 
identify the total aromatic hydrocarbon content, cetane number, and 
other parameters as appropriate and as determined in accordance with 
the test methods identified in Sec.  114.315(a). For alternative diesel 
fuel formulations using additives, the approval notice must specify, at 
a minimum, the identity, the minimum concentration, and the treatment 
rate of the additives used, along with the minimum specifications for 
the base fuel to be used in the approved formulation as determined by 
the test method identified in Sec.  114.315(d)(1).
    As a final point in the discussion of this subsection, we would 
like to clarify what could be included as ``demonstrated to the 
satisfaction of * * * EPA'' in Sec.  114.315(d). Any fuel or fuel 
additive that has been verified by EPA through our Voluntary Diesel 
Retrofit Program/Environmental Technology Verification program could be 
considered demonstrated to the satisfaction of EPA. Also, a fuel 
prepared using EPA's Unified Model (the Model) could be included. The 
Model was created to evaluate the emission reduction benefits of TXLED 
in highway vehicles. In a memo from Bob Larson, EPA's Office of 
Transportation and Air Quality to Carl Edlund, Director of the 
Multimedia Permitting and Planning Divison, Region 6 of the EPA, dated 
September 27, 2001, we stated that the Unified Model should not be used 
to evaluate any other diesel fuel control program. Allowing the use of 
the Unified Model by refiners to evaluate diesel that can achieve the 
same NOX reductions as TXLED smooths the path to compliance. 
Alternative emission reduction plans would not be required in this 
case.
    Along with this clarification, we make the following caveats 
regarding the use of the Unified Model for this purpose:
    (1) It is for use only in the Texas Low-Emission Diesel program 
because it was developed specifically for evaluating TXLED. No other 
state may adopt this Model as a compliance tool or to evaluate the 
benefits of their own state-run diesel fuel program.
    (2) The Unified Model allows the production of fuels using Cetane 
improvers. It does not allow for the use of any other additive.
    (3) The Unified model was created primarily for highway vehicles. 
For highway vehicles the benefits decrease over time starting in 2004. 
In running the Model to determine a formulation, the evaluation year 
used in the Model will make a difference in the benefit. The Unified 
Model can be used for nonroad without decreasing benefits over time 
because nonroad engines do not have exhaust gas recirculation (EGR).

Section 114.316. Monitoring, Recordkeeping, and Reporting Requirements

    New subsection (d) removes the sulfur testing requirement. The 
proposed gallonage requirement was revised at adoption from 50,000 
gallons of LED produced to 250,000 gallons. In the approved SIP, no 
gallonage requirement was included, so this change is more stringent. 
Sampling for sulfur was removed as a State requirement.
    New subsection (e) contains additive sampling language that is more 
stringent than what was previously approved.
    Several administrative revisions were made. One is to provide 
records to the executive director within 15 days instead of five days 
of a written request. The other is a change to the 15 day requirement 
for companies to send in quarterly reports after the end of a quarter. 
This was changed at adoption to 45 days based on comments received 
during the State public comment period. These changes were made to be 
consistent with EPA requirements for these activities.
    In Sec.  114.316(g)(7) two new certification statements were added 
to account for diesel that may need further processing before becoming 
TXLED, and alternative fuel formulations of TXLED. These replace one 
certification that was deleted.
    The sulfur requirement was removed from Sec.  114.316(h)(2). This 
change is approvable for reasons discussed earlier.
    New language in Sec.  114.316(k) adds specific recordkeeping and 
reporting requirements for producers or importers that have Alternate 
Emission Reduction Plans, thus enhancing enforcement of the program. 
This language strengthens the SIP which previously required that plans 
``contain adequate enforcement provisions.'' This includes information 
that producers must put into quarterly reports, e.g., volume of diesel 
fuel produced subject to the provisions of the alternative emission 
reduction plan, the volume of diesel fuel not produced but sold or 
supplied by the producer that is subject to provisions of the 
alternative emission reduction plan, the volume of additive utilized by 
the producer to produce diesel fuel subject to the provisions of the 
alternative emission reduction plan. This is approvable because it 
enhances enforcement of the program.

Section 114.318. Alternative Emission Reduction Plans

    The meaning of this section remains essentially unchanged after 
reformatting and minor substantive changes. Language now in (d) was 
revised to allow plan implementation with executive director approval. 
In the SIP-approved version, it was implied but not explicitly stated 
that implementation of plans was allowed upon EPA and executive 
director approval. This has now been clarified. The July 5, 2005 letter 
from the State indicates that the language in 30 Tex. Admin. Code Sec.  
114.318(d) is meant to reference the approval mentioned in Sec.  
114.318(a) and therefore is interpreted to include EPA approval as 
well. Ultimately, if the plans that the State submits to EPA for 
approval as a SIP revision when implemented do not add up to equivalent 
or comparable reductions in NOX, the State will be 
responsible for replacing the lost reductions with other reductions not 
yet claimed. It is also presumed that the State will take appropriate 
enforcement action on any producer or importer that does not comply by 
supplying equivalent or comparable NOX reductions through a 
fuel strategy.

Section 114.319. Affected Counties and Compliance Dates

    As stated previously, on February 16, 2005 the Executive Director 
of the TCEQ submitted a letter to EPA requesting parallel processing of 
the compliance date portion of the SIP revision for TXLED. We proposed 
approval on February 24, 2005, and gave final approval on April 6, 2005 
(70 FR 17321).
    In Sec.  114.319(b)(1) five more counties were included in the 
Dallas-Fort Worth area bringing the total to nine for that area. These 
counties were part of the DFW Extended Compliance area under the 1-hour 
ozone standard, and are now part of the DFW 8-hour nonattainment area.

Proposed Action

    We are proposing approval of the revisions to the TXLED rule as 
submitted March 23, 2005, with the following exceptions: (1) The 
compliance date changes that were already approved on April 6, 2005; 
(2) revisions to Approved Test Methods in Sec. Sec.  114.315(b) and 
114.315(c)(4)(C)(ii)(V) that the State specifically requested we not 
process at this time as specified above. None of the revisions being 
proposed for approval change the ultimate requirements regarding the 
reductions to be achieved. As a result

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and in accordance with section 110(l) of the Act, 42 U.S.C. section 
7410(l), these revisions will not interfere with attainment, reasonable 
further progress or any other applicable requirement of the Clean Air 
Act.

Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4).
    This proposed rule also does not have tribal implications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). This action also does not 
have Federalism implications because it does not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely proposes to approve a state rule implementing a Federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. This 
proposed rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does 
not impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: August 2, 2005.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. 05-15830 Filed 8-9-05; 8:45 am]
BILLING CODE 6560-50-P